YUNUSA UMAR GUNDA v. UNIVERSITY OF MAIDUGURI (2014)

YUNUSA UMAR GUNDA v. UNIVERSITY OF MAIDUGURI

(2014)LCN/7343(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of June, 2014

CA/J/123/2012

RATIO

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF THE TRIAL COURT UNLESS IT IS PERVERSE
The law is trite, findings of facts and decision arrived thereby by a trial Court are presumed to be correct, unless proved otherwise. Where a trial Court evaluated the evidence properly, ascribed probative value thereto and made decisions thereby, an appellate court should not interfere with such decisions arrived at unless the appellant can prove otherwise. There is a presumption that the findings of facts made by a trial Court and decisions arrived at thereby are correct. An appellate court should not disturb or interfere with such findings and the decision arrived at unless the appellant can rebut such presumption. See Dickson Moses vs. The State (2006) 4 SCNJ P. 190 @ 223. per. IBRAHIM SHATA BDLIYA, J.C.A.

COURT: JURISDICTION; WHETHER IN A CLAIM FOR WRONGFUL DISMISSAL FROM SERVICE, IT IS NOT WITHIN THE JURISDICTION OF THE COURT TO DELVE INTO THE ISSUE OF WHETHER THE EMPLOYEE WAS GUILTY OF THE MISCONDUCT OR NOT, WHETHER IT IS THE DUTY OF THE COURT TO INVESTIGATE THE GUILT OF THE APPELLANT AND ALL THAT THE EMPLOYER IS TO ESTABLISH TO JUSTIFY THE DISMISSAL OR TERMINATION OF THE APPOINTMENT MUST SHOW

The law is trite where an employer terminates the appointment of an employee on the ground of misconduct, the employer is only expected to be satisfied that there was misconduct established against the employee. If the employer disagrees, or challenges the termination of his appointment in a Court of law, the Court can only consider whether the employer complied with the relevant procedure in terminating the appointment or not. The Court cannot delve into the issue of whether the employee was guilty of the misconduct or not. To prove guilt of a person in doing an act is not within the province of the jurisdiction of a civil court. Guilty, in its grammatical meaning has criminal elements of which only a criminal Court can adjudicate on. This Court in the case of Tamti v. NCSB (2009) 7 NWLR pt. 1141 p. 631 @ 658 did consider similar issue and said that:
“The jurisdiction of the trial court is determined by the claim of the plaintiff before the trial court and in the instant case, the claim being for wrongful dismissal from service. It is not therefore the duty of the trial court to venture to consider the involvement of the appellant in the missing 270 packages of cargo. The respondents by their investigation found that appellant guilty of gross misconduct as a result of which he was relieved of his duty and the issue before the trial court was to consider whether the retirement was proper in law and not to determine the level of culpability of the appellant in the missing of the 270 packages of cargo. Investigation is not the function of the court and the trial court could not have assumed jurisdiction to consider and determine the issue of the appellant’s involvement in the illegal release of 270 packages from NAHCO shed; consequently the issue is resolved against the appellant and in favour of the respondent.”
By contending that the lower court did not consider and decide if the guilt of the appellant was proved, the court is being asked to investigate the allegation against the appellant. Investigation is not the duty of a trial Court. The trial Court is to consider the evidence before it in arriving at its decision. All that the lower Court was expected to do is to consider the evidence before it in order to see if the termination of the appellant’s appointment was in accordance with section 16 of the Act. In Tamti v. NCSB p. 658, this Court per Abba Aji J.C.A, when dealing with similar issues said that:
“The issue therefore was for wrongful suspension and subsequent dismissal from service. It is not therefore the duty of the trial court in the circumstances to delve into the involvement or otherwise of the appellant in the missing of the 270 packages of cargo. It is not the function of the trial court to investigated and consider the degree of culpability if any of the appellant. The jurisdiction of the trial court in the circumstances is to consider whether the retirement of the appellant was wrongful or proper in the circumstance but not investigate the level of his involvement in the missing of 270 packages of cargo.”
What the Court said in the case of Bamiboye v. University of Ilorin (1996) 6 SCNJ P. 295 @ 327 maybe of assistance in appreciating the point made supra. While considering similar issue as in the instant appeal, the Court said:
“In the case of NEPA V. EL-FANDI (1986) 3 NWLR (Pt. 32) 884 (A Kaduna Division Court of Appeal case) where the Plaintiff/Respondent therein sued for the unlawful termination of his employment for an alleged misconduct and the issue therein was as to whether the Defendant/Appellant should prove the serious misconduct before the Trial Court, AKPATA, JCA (as he then was) observed interalia at Page 698 of the Report:
“…all that the employer is to establish to justify the dismissal or termination of the appointment is to show:-
(i) That the allegation was disclosed to the employee
(ii) That he was given a fair hearing…and
(iii) That the Panel believed he committed the offence after hearing witnesses.
Although the above case is not binding on this Court the underlined portion above provides a guide for the Respondent’s Submissions. The proposition of law is that in order to justify the Appellant’s termination of employment the employer must prove to the Trial courts satisfaction that the council believed the Appellants committed acts of gross misconduct after hearing the case…The onus was on the Appellant to prove that the termination of his employment was wrongful.” per. IBRAHIM SHATA BDLIYA, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE; THE POSITION OF THE LAW ON THE ADMISSION OF DOCUMENTS IN A CIVIL PROCEEDINGS

I am of the view it would be of considerable assistance to reproduce extensively what the Court enunciated on the current position of the law on the admission of documents in a civil proceedings even though there are no facts pleaded by the parties. GARBA, J.C.A. said:
“The question that arises now in respect of exhibit P5 is whether the law requires that the said exhibit merely because it is documentary or a document, must be pleaded before it is admissible in evidence. I would say that by the initial position of the judicial authority, before documents are allowed or become admissible in evidence, they must have been pleaded by either of the parties but more particularly the party intending to use or tender it in evidence at the trial of a case. See: Lawal v. G. B. Olivant (Nig.) Ltd. (1972) 1 ALL NLR 207 Akande v. Alaga (1988) 4 NWLR (Pt. 86) 1 and Oyediran v. Adebiosu II (1992) 6 NWLR (Pt.249) 550 at 559 where it was held inter alia by the Supreme Court that:
“In civil proceedings, for a document to be admissible it must not only be pleaded, it must also be relevant.” However, that position has been modified to the effect that where the document is the evidence by which a party seeks to prove or support the facts contained in his pleadings or pleadings of the other party, it needs not to be specifically pleaded before it comes admissible in evidence. In the case of Allied Bank (Nig.) Ltd. v. Akubueze (1997) 6 NWLR (Pt. 509) 374 at 403, it was held that: “Documentary evidence in order to be admissible in evidence needs not be specifically pleaded so long as the relevant facts and not the evidence by which such document is covered, are pleaded.” See also Odunsi v. Bamgbala (1995) 1 NWLR (Pt. 374) 641; Amadi v. Olumati (1995) 7 NWLR (Pt. 410) 739; Monier Construction Co. v. Azubuike (1990) 3 NWLR (Pt. 135) 74. This later position is in line with the established principle of law that pleadings must contain and state only facts and not evidence by which the facts are to be proved as established in such case as Finih: Imade (1992) 1 SCNJ 87, (1992) 1 NWLR (Pt. 219) 511:
Ekretsu v. Oyobebere (1992) 11 & 12 SCNJ 189, (1992) 9 NWLR (Pt. 266) 438 and Ezemba v. Ibeneme (supra) among several other authorities.” per. IBRAHIM SHATA BDLIYA, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE; THE ADMISSIBILITY OF A DOCUMENT NOT PLEADED OR REFERRED OR INFERRED FROM THE PLEADINGS AND THE ESSENCE OF PLEADINGS

Thus, once a document is not pleaded or referred or inferred from the pleadings, the mere act of annexing same to the pleadings will not confer on it admissibility. In otherwords, the fundamental issue here is not on whether or not it was annexed to the pleadings but whether or not it was pleaded. As I held earlier, neither was this pleaded nor (more importantly) were any facts explaining its connection to any aspect of the suit pleaded as required by law and Rules of this Court, See Order 26 Rules Rule 6 (1) and (2) and 11 of the Federal High Court Civil Procedure Rules (2000 as well as Order 13 Rules 4 (1), 6 (i), 11 and 21 of the Federal High Court Civil Procedure Rules 2009. The suit was commenced under the former Rules of this Court. In Abubakar V. Joseph (2008) M.J.S.C. Vol., 1, 1 @ 17 Paras B-C the Supreme Court held that:
Parties are bound by their pleadings. Their case stands or falls by the averments in those pleadings and the evidence adduced in support of these averments. Any evidence not supported by the pleadings should be ignored as it goes to no issue”.
Still on the same point at P. 41 paras. E – G it held further that:
“The essence of pleadings is to compel the parties to define accurately and precisely the issue upon which the case is to be contested. This is in order to avoid any element of surprise by either party. It is not to adduce evidence which goes outside the facts pleaded.”
It must be understood that this Court not saying that documents, e.g. the book in controversy, are not admissible in evidence during cross-examination, for it is a well settled practice. What the Court is saying is that once a fact or facts are not pleaded they are thus inadmissible in evidence regardless of the stage at which they are tendered in evidence. So was it also held in Akinrimade V. Lawal (1996) 2 NWLR part 429, 218 @ 229 paras C – D that evidence on unpleaded fact elicited during cross examination is inadmissible in evidence. per. IBRAHIM SHATA BDLIYA, J.C.A.

JUSTICES

CHIOMA E. NWOSU-IHEME Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria

Between

YUNUSA UMAR GUNDA Appellant(s)

AND

UNIVERSITY OF MAIDUGURI Respondent(s)

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): The appellant as plaintiff instituted suit No. FHC/MG/CS/70/2005 at the Federal High Court, Maiduguri Division, (herein referred to as the lower court) against the respondent (as defendant) by a writ of Summons which he sought the following reliefs:
“Whereof the Plaintiff claimed against the Defendant:
(a) A Declaration that the purported termination of the Plaintiff’s Appointment with the Defendant is against the Defendant’s rules and regulations, illegal, unconstitutional and therefore null and void.
(b) An Order reinstating the Plaintiff back to his position as a Senior Assistant Registrar with the Defendant.
(c) An Order directing the Defendant to pay the Plaintiff all his outstanding entitlements from the purported date of termination of his Appointment till judgment is delivered including his withheld salaries during the period of suspension.
(d) One Million Naira (N1, 000.000) damages for wrongful termination of the Plaintiff’s Appointment with the Defendant.
(e) Costs of the suit.”

The facts upon which the appellant’s case was predicated are as contained in paragraphs 1 – 27 of the statement of claim which are on pages 3 to 7 of the record of appeal. The respondent denied the claims of the appellant in an Amended Statement of defence which are on pages 184 to 186 on the record of appeal. Pleadings were filed and exchanged. Issues joined, and the case went to trial whereat the parties called witnesses who testified on their behalf. Documents were tendered and admitted in evidence as exhibits. Learned Counsel addressed the Court. On the 30th of January, 2012, the learned trial judge delivered his judgment dismissing all the reliefs sought by the appellant. Dissatisfied with the judgment he filed a Notice of appeal on the 13th of March, 2012 consisting of 12 grounds of appeal.
The appellant’s brief of argument was deemed filed on the 10th of February, 2014 wherein 4 Issues were distilled from the 12 grounds of appeal. The respondent filed brief of argument on the 24th of February, 2014, wherein 4 Issues were formulated from the 12 grounds of appeal.
An appellant’s Reply brief was filed on the 11th of March, 2014. The appeal was heard on the 20th of May, 2014, whereat, learned Counsel to the parties adopted their respective brief of argument. Sangei Esq. urged the Court to allow the appeal, set aside the judgment of the lower Court and enter judgment for the appellant per his claims at the lower Court. Bello Esg. of learned Counsel to the respondent, urged the court to dismiss the appeal and affirm the judgment of the lower Court.
The Issues distilled out of the 12 grounds of appeal in the briefs of argument are like identical twins which can hardly be distinguished. The resolution of any of the sets of Issues in the briefs of argument would also resolve the other. The law is trite, in the hearing and determination of an appeal, an appellate Court has discretion to either adopt the Issues formulated in the briefs of the parties, or reframe or restructure them and even where desirable formulate new Issue(s) which may be entirely different from those contained in the briefs. However, the Issues framed to be resolved in an appeal must be based on or related to the grounds of appeal filed by the appellant or the cross-appellant, if any. See PSHSDM v. GOSHWE (2013) 10 NWLR Pt. 1241 P. 163 @ 181; Lafunde v. Lafijin (1989) 3 NWLR Pt. 101 P. 1775 Unity Bank Plc. vs. Bonari (2008) 7 NWLR Pt. 1036 P. 37 and Uko v. Mbaba (2001) 4 NWLR Pt. 704 P. 460.

The Issues to be resolved which would ultimately determine the appeal one way or the other, that is, in favour of the appellant or the respondent, are therefore these:
1. Whether the Learned trial Judge was correct in law when he came to the conclusion that the termination of the employment of the Appellant was in accordance with the provisions of Section 16(1) of the University of Maiduguri Act.
2. Whether the Learned trial Judge failed or neglected to decide on issue No. 2 formulated by the Appellant in his written address before the trial Court.
3. Whether the Learned trial Judge was correct in law when he held that it was not part of his duties to pronounce on whether the Appellant was guilty of misconduct or not.
4. Was the trial court right in law when he did not admit in evidence the book titled “University of Maiduguri 21st Convocation Ceremony Order of Proceedings dated 29th and 30th October, 2010 on the ground that same was not pleaded? And in any case, did the Appellant show that a miscarriage of justice was occasioned by the non-admission of the document?

RESOLUTION OF ISSUES

ISSUE 1
Whether the learned trial judge was right in law when he held that the termination of the employment of the appellant was in accordance with the provision of Section 16 of the University of Maiduguri, Act:
Sangei Esq. submitted that the respondent did not comply with the provisions of Section 16 1(a) (b) and (c), of the University Act when terminating the appointment of the appellant. Learned Counsel cited and relied on several authorities to buttress his elaborate submissions in the brief of argument deemed filed on the 10th of February, 2014. Counsel then urged the court to consider the entire evidence, especially the Exhibits before the lower court relating to the powers of the respondent under Section 16 of the University of Maiduguri Act and to arrive at a just decision in determining the appeal.
Bello Esq. submitted that the provisions of Section 16 of the University of Maiduguri Act was fully complied with by the respondent in terminating the appointment of the appellant. Counsel referred to various parts of the judgment whereby the learned trial judge made findings and decisions on the contentious issues raised by parties at the lower court to buttress his submissions. This court has been urged to hold that the decision of the lower court cannot be faulted having regard to the evidence adduced by the respondent justifying the termination of the appellant’s appointment.
The crucial question to be answered, in my view, is whether the findings and decision of the learned trial judge that the termination of the appellant’s appointment under Section 16 of the University of Maiduguri Act is proper in law can be sustained or uphold by this Court. In my view, the starting point is a consideration of the provisions of Section 16 of the Act viz-a-viz the procedure followed by the respondent in terminating the appointment of the appellant. Section 16 of the University of Maiduguri Act provides thus:
“16(1) If it appears to the Council that there are reasons for believing that any person employed as a member of the academic or administrative or professional staff of the University, other than the Vice-Chancellor, should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment, the Council shall –
(a) give notice of those reasons to the person in question;
(b) afford him an opportunity of making representations in Person on the matter to the Council; and
(c) if he or any three members of the Council so request within the period of one month beginning with the date of notice, make arrangements –
(i) for a Joint Committee of the Council and the Senate to investigate the matter and to report on it to the Council; and
(ii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating Committee with respect to the matter, and if the Council, after considering the report of investigating Committee is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing singed on the directions of the Council.”
2. The Vice Chancellor may, in a case of misconduct by a member of the staff which in the opinion of the Vice Chancellor is prejudicial to the interests of the University, suspend such members and any such suspension shall forthwith be reported to the Council.”
The requirements to be complied with in terminating the appointment or taking any other disciplinary action against any staff as an employee of the respondent under Section 16 of the Act may be summarized as follows:
(i) Notice of the allegations must be given to the Employee to enable him know the nature of the indictment against him.
(ii) Opportunity must be given to the Employee to make representation in person on the matter before the allegations against him is determined by the Council.
(iii) The matter may be referred to the Joint Committee for investigation and in that event the Employee must be allowed to appear and be heard on the matter.
The complaint of the appellant at the lower court is that his appointment was terminated in violation of the provisions of Section 16 of the University of Maiduguri Act. The duty of the lower court was therefore to examine whether the termination was carried out in accordance with the said provisions of the Act. Under the provisions of Section 16 of the Act the respondent is expected to give fair hearing to any staff or employee whose proprietary right would be affected. The appellant gave evidence in support of his claims before the lower Court. The respondent adduced evidence justifying its action in terminating the appointment of the appellant. After evaluating the oral and documentary evidence of the appellant and the respondent the learned trial judge made findings and arrived at decisions which culminated in the dismissal of the appellant’s appointment. The learned trial judge found and held that:
(i) There was allegation of admission malpractices against the appellant.
(ii) A Committee or Panel of Investigation was set up to investigate the allegation against the appellant.
(iii) The appellant was served with a notice of the allegations leveled against him.
(iv) The appellant was invited to appear before the Committee to respond to the allegations against him.
(v) The appellant did appear before the Investigation Committee and he presented his case freely without any hindrance or obstruction.
(vi) The respondent referred the matter to its Joint Committee for investigation.
(vii) The appellant was invited to appear, and he did appear before the Joint Committee of the respondent.
(viii) The Joint Committee made findings and recommendations to the respondent which was submitted to the council.
(ix) The Council considered the report submitted to it before taking a decision to terminate the appointment of the appellant.
After considering the evidence adduced before it by the appellant and the respondent, particularly Exhibits 11, 12, 19, 20, 21, 22 and 23, the learned trial judge found and held as follows:
“I should stress here that it is not for the Court to hold a finding or act of the Defendant’s Council as perverse simply because this court might have arrived at the finding or acted differently if it were the body charged with the trial or investigation of the Plaintiff; for the crux of Section 16(1) is that:
“If it appears to the Council that there are reasons for believing that any person employed … should be removed from his office or employment on grounds of misconduct …”
On the facts before the Court, the Defendant’s Council, proceeding under subsection (1)(a) and (c) of the section was consequently satisfied that the Plaintiff’s appointment be terminated. I have carefully restudied the facts and evidence which the council considered by which it terminated the Plaintiff’s appointment; more particularly the entirety of those referred by the learned Counsel for the Plaintiff in his arguments on this issue, viz-a-viz the provisions of section 16 of the Act. I am satisfied that the Defendant’s council acted properly within its powers under section 16(1) when it considered and relied as it did on the evidence in exhibits 20 and 26 in terminating the Plaintiff’s appointment.”
I have had dispassionately considered the judgment of the lower Court in its entirety. The learned trial judge had admirably evaluated the evidence, (oral and documentary) in arriving at his decision that the respondent had complied with the provisions of Section 16 of the University of Maiduguri Act in terminating the appointment of the appellant.
The law is trite, findings of facts and decision arrived thereby by a trial Court are presumed to be correct, unless proved otherwise. Where a trial Court evaluated the evidence properly, ascribed probative value thereto and made decisions thereby, an appellate court should not interfere with such decisions arrived at unless the appellant can prove otherwise. There is a presumption that the findings of facts made by a trial Court and decisions arrived at thereby are correct. An appellate court should not disturb or interfere with such findings and the decision arrived at unless the appellant can rebut such presumption. See Dickson Moses vs. The State (2006) 4 SCNJ P. 190 @ 223.

The submissions of Sangei Esq., of learned counsel, that the respondent did not comply strictly with the provisions of Section 16 of the University of Maiduguri Act in terminating the appointment of the appellant, as brilliant as they are, have not persuaded me to interfere or find otherwise than to endorse the decision arrived at by the learned trial judge in his well considered judgment delivered on the 30th of January, 2012. Consequently, Issue 1 is hereby resolved against the appellant.
ISSUE 2
Whether the learned trial judge was right in refusing to take a decision on Issue 2 formulated by the parties and adopted by the Court. Sangei Esq. submitted that the Issue which was formulated by both parties was not resolved by the lower Court. That the failure or refusal to consider and resolve the Issue was fatal to the appellant’s right to fair hearing which is a constitutional right. It was counsel’s contention that had the learned trial judge considered and resolved Issue 2, the judgment of the lower court would have been different in that it would have been proved that he was not given fair hearing in the investigation of the allegation against him on which the termination of his appointment was predicated on.
Bello Esq. did not agree with the contention of the appellant that Issue 2 was not resolved by the lower Court. Counsel referred to page 309 line 15 to page 315 of the record of appeal and submitted that the said Issue was properly considered and resolved by the lower Court. It has been further adumbrated that the lower court went further to make findings and resolved the issue of whether the appellant was given fair hearing or not by the respondent in the investigation of the allegation against him. Counsel concluded by submitting that the lower court did consider Issue 2 contrary to the contention of the appellant’s counsel.
I think, a recourse to the record of proceedings, especially the judgment of the lower court is imperative in order to find out if the lower court did consider and resolve Issue 2 which was raised before it by the parties. From pages 309 to 315 of the record of appeal the issue of whether the respondent complied with the provisions of section 16 of the University Act was extensively dealt with. The learned trial judge concluded his consideration of whether the respondent complied with Section 16 of the Act thus:
“On the whole, I am not persuaded that the reasons canvassed on this issue by the learned counsel for the Plaintiff are enough to support a determination that the termination of the Plaintiff’s appointment is contrary to section 16(1) of the Act.”
Issue 2 is hereby resolved against the appellant.

ISSUE 3
Whether the learned trial Judge was right in law when he held that it was not his duty to decide whether the appellant was guilty of misconduct or not. Sangei Esq. did submit that the allegation of misconduct against the appellant was an issue before the lower Court because the termination of his appointment was predicated on it. Counsel adumbrated that the learned trial judge ought to have considered and determined whether there is evidence establishing such misconduct to justify the termination of the appellant under Section 16 of the University Act. Learned counsel submitted that the lower Court was in error when it held in his judgment that he was under no duty to do so. Counsel referred to a number of decided case to buttress his submissions supra.
Bello Esq., of learned counsel submitted that having regard to the nature of the relief sought at the lower Court, the learned trial judge was right in holding that he was not under duty to consider and determine whether the allegation of misconduct was proved or not. It was counsel’s contention that the learned trial judge was only under duty to satisfy himself that the procedure spelt out under Section 16 of the Act was complied with or observed in the investigation of the allegation against the appellant. That whether the appellant was guilty of committing the misconduct or not can only be determined by a Court of law if such charge was laid before it. In civil cases, he went on, where misconduct is the basis of taking a disciplinary action by employer against an employee, all that is required for the Court to decide is whether the provisions under which the action is being or has been taken is in accordance with the applicable law. Counsel referred to the case of N.E.P.A. vs. EL Fandi (1986) 3 NWLR pt. 32 P. 884 to buttress his submissions supra. He went on to submit that the refusal or failure of the lower Court to consider and take a decision on the issue of whether the allegation of misconduct had been established or not has not caused any miscarriage of justice in that it is not Perverse.
In order to resolve the issue under consideration, I think it is imperative to have a recourse to the pleadings of the parties and the nature of the reliefs sought by the appellant at the lower Court. A perusal of the appellant’s pleadings has shown that the respondent’s action in terminating his appointment is that the provisions of Section 16 of the University Act have not been strictly complied with. The main relief sought in paragraph 28 of the statement of claim is to the effect that the termination of his appointment is contrary to the law, therefore illegal, unconstitutional, null and void. I am in agreement with Bello Esq. of counsel to the respondent when he submitted that the issue that the lower Court did not consider and decide whether the appellant was guilty of misconduct or not, did not arise. Counsel pointed out that what the lower Court was called upon to decide is whether the termination of the appellant’s appointment was in accordance with Section 16 of the Act or not. For as pointed out in University of Calabar vs. Essien (1996) 10 NWLR Pt. 477 P.229 @ 262:
“Where an employer dismisses or terminates the appointment of an employee on ground of misconduct, all that employer needs to establish to justify his actions is to show that the allegation was disclosed to the employee. That he was given a fair hearing…and that the Disciplinary Panel followed the laid down procedure if any and accepted that he committed the Act after its investigation” CALABAR V. ESSIEN (SUPRA) AT PAGE 225.”

The learned trial judge when dealing with the issues of whether the allegation leveled against the appellant was proved or not, said on page 322 – 322 of the record of appeal said that:
“It should be remembered here that the Plaintiff was not on trial before this court on the allegations labeled by the Defendant against him. It was the Defendant’s Council that is empowered by the Act to try him accordingly and having done that, the role of this court is limited to whether or not the council complied with the latter and spirit of the law in the trial. In otherwords, was due process followed by the Defendant in the steps leading to the termination of the Plaintiff’s appointment? The due process meant here is not synonymous with nor is to be inferred from the court civil or criminal procedure rules. It is deeply rooted in section 36 of the constitution of the Federal Republic of Nigeria 1999 and a dispassionate consideration of section 16 (1) of the Act by the Defendant.”
The learned trial judge was right in his findings and decision supra, first it was not within the province of his duty to embark on an investigation of the alleged misconduct leveled against the appellant. This duty squarely lies on the respondent under the provisions of section 61 of the University Act. The respondent did carry out this duty as could be seen in Exhibits 11, 12, 18, 19, 20, 21, 22 and 23. The duty of the lower court was only to consider and review the evidence including the exhibits mentioned supra, in order to see if the procedure spelt out in section 16 of the Act were complied with before the appellant’s appointment was terminated. Issue 3 is hereby resolved against the appellant.

ISSUE 4
Was the lower Court right in law when it refused to admit in evidence the book titled “University of Maiduguri 21st Convention Ceremony Order of Proceedings dated 29th and 30th, October, 2010 under cross-examination on the grand that same was not pleaded?
On this issue Sangei Esq. submitted that there exist facts which have been pleaded to warrant the admissible of the document sought to be admitted in evidence. Counsel further argued that even if there are no pleadings in respect of the document tendered, it is still admissible in that the position of the law now on the admissibility of document has been modified to the effect that if the document is itself the evidence which can prove what is in dispute or controversy, there is no requirement that there must be facts pleaded before it can be admissible. The case of Ogu v. MT & MCS Ltd. (2011) 8 NWLR Pt. 1249 P. 345 @ 376 – 377 was cited in reinforcement of the submissions supra. The Court has been urged to resolved that the lower Court erred in low by rejecting the document tendered by the appellant in support of his defence to the allegation of admission malpractices against him by the respondent. Bello Esq. for the respondent pointed out that it is worthwhile to refer to ground 7 of the grounds of appeal from which Issue 4 has been distilled. It was his contention that the appellant’s complaint is that the document sought to be admitted in evidence was rejected because it was not pleaded, not that it cannot be used in cross-examination of the witness through whom it was tendered. Counsel further submitted that what is to be considered is the relevancy of the document having regard to pleaded facts. That if there are no facts pleaded rendering the document relevant; it cannot be admitted in evidence.
In order to resolve the issue whether the lower Court erred in law when it refused to admitted the Convocation ceremony Booklet of 2010, or not, a recourse to the proceedings of the Court relevant to the tendering and rejection of it is imperative. The proceedings of the lower Court relevant to the tendering of the document are on pages 245 to 247 of the record of appeal. They are thus:
“A report of the Investigation Panel was placed before the Committee. Yes, it was as a result of the disciplinary committee. That it proceeded against the Plaintiff on the report of the administrative panel. Yes, it adopted it, (DW1 shown exhibit “21”)
Yes, on page 22 paragraph 23 (read in open Court). (Dw1 shown exhibit “18”) Yes, exhibit 18 contains lists of students suspected with fake admission letters. Yes, our report was accepted by the Vice Chancellor. Exhibit “11” is the letter of allegation against the Plaintiff. None of the names on exhibit “11” appeared on exhibit “18”. (Dw1 shown exhibit “21”) yes, on page 23 of exhibit “21” I did not sign the report. (Dw1 shown exhibit “22”). Yes on page 1 of exhibit ’22’ is contained the Terms- of Reference on paragraph b. Yes, they had no power to go outside the terms of Reference. Yes, all the names listed in exhibit “11” have no University ref. Nos. Which is the best way to identify proper students that is why exhibit “18” has all the numbers. What I am shown is the Convocation Ceremony.
Mishelia: I want to tender it in evidence.
Umaru: I object on the ground that it has not been pleaded the facts relating to it are also pleaded by either of the parties.
Secondly it was not annexured to the Statement of Claim for us to know that they intend to use it at the trial. By order 20 Rule 3 of the Rules of this court this document be admitted without leave of the Court.
Thirdly, the action was instituted, in 2005. The document sought to be tendered was made in 2010.
Mshelia: In cross examination documents can be tendered for 2 Purposes – to support facts Pleaded and to test nercity the document is test the nercity of the witness Rules of Pleadings on notices do not apply.
That the document was made in 2010 so the notice he is talking about could not have arisen the document is not authored by the Plaintiff. That is all.
Court: Ruling will be delivered later in the day.”
The ruling of the lower Court rejecting the admission of the document are on pages 249 – 253 of the record of appeal. The relevant portions of the ruling are on pages 251 – 253 which are reproduced hereunder:
“I have examined the pleadings of both parties with particular attention to the issue in controversy. For the avoidance of doubts, I have painstakingly examined every single averment contained in both the original and the amended pleadings of both parties, together with all the documents attached to same. I did not find any portion where this book was pleaded by either or both parties; nor have I found any specific, general reference or inference to it. I am therefore in agreement with the learned Counsel for the Defendant that the book has not been pleaded. The arguments of both learned Counsel on whether or not the book was annexed to the Plaintiff’s pleadings and indeed whether it should so be is, in my view, wholly dependent on whether the book was pleaded by the parties in the first place. Thus, once a document is not pleaded or referred or inferred from the pleadings, the mere act of annexing same to the pleadings will not confer on it admissibility. In otherwords, the fundamental issue here is not on whether or not it was annexed to the pleadings but whether or not it was pleaded. As I held earlier, neither was this pleaded nor (more importantly) were any facts explaining its connection to any aspect of the suit pleaded as required by law and Rules of this Court, See Order 26 Rules Rule 6 (1) and (2) and 11 of the Federal High Court Civil Procedure Rules (2000 as well as Order 13 Rules 4 (1), 6 (i), 11 and 21 of the Federal High Court Civil Procedure Rules 2009. The suit was commenced under the former Rules of this Court. In Abubakar V. Joseph (2008) M.J.S.C. Vol., 1, 1 @ 17 Paras B-C the Supreme Court held that:
Parties are bound by their pleadings. Their case stands or falls by the averments in those pleadings and the evidence adduced in support of these averments. Any evidence not supported by the pleadings should be ignored as it goes to no issue”.
Still on the same point at P. 41 paras. E – G it held further that:
“The essence of pleadings is to compel the parties to define accurately and precisely the issue upon which the case is to be contested. This is in order to avoid any element of surprise by either party. It is not to adduce evidence which goes outside the facts pleaded.”
It must be understood that this Court not saying that documents, e.g. the book in controversy, are not admissible in evidence during cross-examination, for it is a well settled practice. What the Court is saying is that once a fact or facts are not pleaded they are thus inadmissible in evidence regardless of the stage at which they are tendered in evidence. So was it also held in Akinrimade V. Lawal (1996) 2 NWLR part 429, 218 @ 229 paras C – D that evidence on unpleaded fact elicited during cross examination is inadmissible in evidence.
For the foregoing considered reasons I find the book in issue inadmissible in evidence and same is hereby rejected and so marked.”

Sangei Esq. referred to the case of Ogu V. MTFRCS Ltd. (2011) 8 NWLR Pt 1249 P. 345 to reinforce his submission that the principles of the law of evidence on the admissibility of documents have modified for the better. That the trend now is to admitted a document though not specifically averred in the pleadings of the parties where such document is its itself the evidence intended to prove or establish the facts requiring proof in the litigation.

I am of the view it would be of considerable assistance to reproduce extensively what the Court enunciated on the current position of the law on the admission of documents in a civil proceedings even though there are no facts pleaded by the parties. GARBA, J.C.A. said:
“The question that arises now in respect of exhibit P5 is whether the law requires that the said exhibit merely because it is documentary or a document, must be pleaded before it is admissible in evidence. I would say that by the initial position of the judicial authority, before documents are allowed or become admissible in evidence, they must have been pleaded by either of the parties but more particularly the party intending to use or tender it in evidence at the trial of a case. See:
Lawal v. G. B. Olivant (Nig.) Ltd. (1972) 1 ALL NLR 207 Akande v. Alaga (1988) 4 NWLR (Pt. 86) 1 and Oyediran v. Adebiosu II (1992) 6 NWLR (Pt.249) 550 at 559 where it was held inter alia by the Supreme Court that:
“In civil proceedings, for a document to be admissible it must not only be pleaded, it must also be relevant.”
However, that position has been modified to the effect that where the document is the evidence by which a party seeks to prove or support the facts contained in his pleadings or pleadings of the other party, it needs not to be specifically pleaded before it comes admissible in evidence. In the case of Allied Bank (Nig.) Ltd. v. Akubueze (1997) 6 NWLR (Pt. 509) 374 at 403, it was held that:
“Documentary evidence in order to be admissible in evidence needs not be specifically pleaded so long as the relevant facts and not the evidence by which such document is covered, are pleaded.”
See also Odunsi v. Bamgbala (1995) 1 NWLR (Pt. 374) 641; Amadi v. Olumati (1995) 7 NWLR (Pt. 410) 739; Monier Construction Co. v. Azubuike (1990) 3 NWLR (Pt. 135) 74. This later position is in line with the established principle of law that pleadings must contain and state only facts and not evidence by which the facts are to be proved as established in such case as
Finih: Imade (1992) 1 SCNJ 87, (1992) 1 NWLR (Pt. 219) 511:
Ekretsu v. Oyobebere (1992) 11 & 12 SCNJ 189, (1992) 9 NWLR (Pt. 266) 438 and Ezemba v. Ibeneme (supra) among several other authorities.”

The learned trial judge in his ruling on the application to admit in evidence the Conversation Ceremony Order of proceedings held as follows on pages 251 – 252 of the record of appeal.
“I have examined the pleadings of both parties with particular attention to the issue in controversy. For the avoidance of doubts, I have painstakingly examined every single averment contained in both the original and the amended pleadings of both parties, together with all the documents attached to same. I did not find any portion where this book was pleaded by either or both parties; nor have I found any specific, general reference or inference to it. I am therefore in agreement with the learned Counsel for the Defendant that the book has not been pleaded. The arguments of both learned Counsel on whether or not the book was annexed to the Plaintiff’s pleadings and indeed whether it should so be is, in my view, wholly dependent on whether the book was pleaded by the parties in the first place. Thus, once a document is not pleaded or referred or inferred from the pleadings, the mere act of annexing same to the pleadings will not confer on it admissibility. In otherwords, the fundamental issue here is not on whether or not it was annexed to the pleadings but whether or not it was pleaded. As I held earlier, neither was this pleaded nor (more importantly) were any facts explaining its connection to any aspect of the suit pleaded as required by law and Rules of this Court. See Order 26 Rules Rule 6 (1) and (2) and 11 of the Federal High Court Civil Procedure Rules (2000 as well as Order 13 Rules 4 (1), 6 (i), 11 and 21 of the Federal High Court Civil Procedure Rules 2009. The suit was commenced under the former Rules of this Court. In Abubakar V. Joseph (2008) M.J.S.C. Vol. 1, 1 @ 17 Paras B-C the Supreme Court held that:
Parties are bound by their pleadings. Their case stands or falls by the averments in those pleadings and the evidence adduced in support of these averments. Any evidence not supported by the pleadings should be ignored as it goes to no issue.”
Still on the same point at P. 41 paras. E – G it held further that:
“The essence of pleadings is to compel the parties to define accurately and precisely the issue upon which the case is to be contested. This is in order to avoid any element of surprise by either party. It is not to adduce evidence which goes outside the facts pleaded.”

It must be understood that this Court not saying that documents, e.g. the book in controversy, are not admissible in evidence during cross-examination, for it is a well settled practice. What the Court is saying is that once a fact or facts are not pleaded they are thus inadmissible in evidence regardless of the stage at which they are tendered in evidence. So was it also held in Akinrimade V. Lawal (1996) 2 NWLR Part 429, 218 @ 229 paras C – D that evidence on unpleaded fact elicited during cross examination is inadmissible in evidence.

For the foregoing considered reasons I find the book in issue inadmissible in evidence and same is hereby rejected and so marked.”
It should be noted that in Ogu’s case supra, facts were pleaded in the respondent’s affidavit. The document sought to be admitted was intended to prove the facts so averred in the affidavit of the respondent. In the appeal at hand the learned trial judge found and held that no facts were pleaded requiring proof of which the document tendered could be the only evidence to prove such pleaded facts. The issue in the case of Ogu supra is therefore not on all fours with the case at hand. In Ogu’s case, facts were pleaded which could be proved by the document sought to be admitted in evidence. In the appeal at hand there are no such facts as found and held by the learned trial judge. I have examined the pleadings of the parties, no facts have been pleaded on the holding of a Convocation of the respondent, by the parties. The document, the Convocation Ceremony Order of Proceedings came up under cross-examination of a witness. Having not been pleaded directly or indirectly by the parties the document cannot be admissible in evidence. On this premise, the document sought to be admitted in evidence in the case at hand is distinguishable from the circumstances in which the document was admitted in Ogu’s case. The principles of law enunciated in the case of Ogu that the position of the law has been modified on the admissibility of documents in civil proceedings cannot be applicable in this case. The learned trial judge was therefore right in rejecting the Convocation Ceremony Order of Proceedings in evidence when it was tendered by the respondent. Issue 4 is hereby resolved against the appellant.
Having resolved all the 4 issues against the appellant, the appeal fails. Same is hereby dismissed. The judgment of the lower Court in Suit No. FHC/MG/CS/70/2005 delivered on the 30th of January, 2012 is hereby affirmed. I make no order as to costs.

CHIOMA E. NWOSU-IHEME (Ph.D) J.C.A.: I have had the opportunity of reading in draft the judgment delivered by my learned brother, I. S. BDLIYA, JCA. I agree with his reasoning and conclusions.
I endorse the facts of this case as set down in my learned brother’s lead Judgment. I agree that there is no merit in this appeal and I accordingly dismiss same.
The Judgment of the lower Court in Suit NO FHC/MG/CS/70/2005 delivered on the 30th of January, 2012 is hereby affirmed.
I endorse the order as to costs.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the advantage of reading in draft the lead judgment just delivered by my learned brother IBRAHIM SHATA BDLIYA, J.C.A. I adopt the facts, reasoning and conclusions contained in the lead judgment as mine. The learned trial judge painstakingly evaluated the evidence adduced before him before arriving at his conclusion.
The law is trite that an Appellate Court does not normally disturb or interfere with the findings, evaluating of evidence and the decision of a trial Court, except in the following circumstances:
i. Where the trial Court did not make a proper use of the opportunity of seeing and hearing the witnesses at the trial.
ii. where the trial court drew wrong conclusion from accepted credible evidence.
iii. where the trial court took an erroneous view of the evidence adduced before it, and
iv. Where the trial Court’s findings are perverse in the sense that they are unsupportable by the evidence or did not flow from the evidence accepted by it.
See HENSHAW V. EFFANG (2009) 11 NWLR (pt. 1151) P. 65 at 88-89, WACHKWU V. OWUNWANNE (2011) 14 NWLR (Pt. 1266) p. 1034, KAZEEM V. MOSAKU (2007) 17 NWLR (pt. 1064) p.523 at 545, BALOGUN V. AGBOOLA (1974) 1 ALL NWLR (pt. 66), POPOOLA V. ADEYE (1992) 8 NWLR (pt. 257) p. 1 and MOSES MAPUR MAVOLO & OR. V. MONDAY MASOK CA/J/82/2011.

It is for this reason, and more detailed reasons given by my lord, IBRAHIM SHATA BDLIYA, J.C.A., in the lead judgment, I, too hereby dismiss the appeal for it has no merit and affirmed the judgment of Federal High Court, Maiduguri Division in Suit No. FHC/MG/CS/70/2005 delivered on 30th January, 2012.
I make no order as to costs.

Appearances

A.A. Sangei Esq. (with M.S. Umar B.I. Shehu, B.S. Ahamad and I.A. Sangei Esq.)For Appellant

AND

P. A. Bello Esq.For Respondent